Master Neelansh Sharma (Minor) ... vs Ramjas School And Ors
2015 Latest Caselaw 6003 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 17th August, 2015.

+                                  W.P.(C) No.4164/2015

       MASTER NEELANSH SHARMA (MINOR) THROUGH
       HIS NEXT FRIEND AND FATEHR                 ..... Petitioner
                    Through: Mr. Ashok Agarwal, Adv.

                                   Versus

    RAMJAS SCHOOL AND ORS                     ..... Respondents

Through: Mr. Atul Jain and Mr. Abhishek Kumar, Advs. for R-1 to 3.

Mr. Satyamak, Adv. for R-4/GNCTD.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition seeks a mandamus for admission of the petitioner to the

respondent No.1 Ramjas School at Pusa Road, New Delhi (Pusa Road

School).

2. The petition was entertained. Counter affidavits have been filed by

the respondents No.1 Pusa Road School and by the respondent No.4

Directorate of Education (DoE), Govt. of NCT of Delhi (GNCTD). No

rejoinders thereto have been filed by the petitioner inspite of opportunity.

The counsels have been heard.

3. It is the case of the petitioner:

(i) that he has passed Class V from the respondent No.2 Ramjas

Primary School, Darya Ganj, Delhi (Darya Gang School) in the

academic year 2014-2015 and was eligible for admission in Class VI

in the respondent No.1 Pusa Road School in the academic year 2015-

2016;

(ii) that the respondent No.2 Darya Ganj School vide Circular dated

7th March, 2015 informed the parents of all the children who had

passed Class V to report to the respondent No.1 Pusa Road School for

interview on 25th March,2015;

(iii) that though the petitioner approached the respondent No.1 Pusa

Road School on 25th March, 2015 along with the requisite fee but was

denied admission, for the reason of his father having actively protested

against the School Management on various issues;

That when the representations made to the respondent No.1

Pusa Road School and the respondent No.3 Ramjas Foundation met

with no success, this petition with the relief aforesaid was filed.

4. The respondent No.1 Pusa Road School in its counter affidavit has

pleaded:

(I) that the petition has been filed under an erroneous assumption

that the petitioner has a right to be automatically admitted in the

respondent No.1 Pusa Road School in Class VI;

(II) that the respondent No.1 Pusa Road School, as also the

respondent No.2 Darya Ganj School, are private Schools, with the

respondent No.2 Darya Ganj School being from Nursery to Class V

and the respondent No.1 Pusa Road School being from Class VI to XII

with the total number of intake seats of 168 which is divided into four

sections of 42 students each;

(III) that the respondent No.1 Pusa Road School‟s total intake of

students in Class VI is from two sources, (i) i.e. outside students who

have passed Class V from neighbouring schools; and, (ii)students who

have passed Class V from, (a) respondent No.2 Darya Ganj School,

(b) Ramjas Primary School, Ballimaran, and (c) Babu Ram Happy

School, Sita Ram Bazar;

(IV) that the respondent No.2 Darya Ganj School and the Ramjas

Primary School, Ballimaran are run under the aegis of the respondent

No.3 Ramjas Foundation;

(V) that the respondent No.1 Pusa Road School admits students,

first from the neighbouring schools and thereafter from (a) the

respondent No.2 Darya Ganj School, (b) Ramjas Primary School,

Ballimaran, and (c) Babu Ram Happy School, Sita Ram Bazar;

(VI) that of the 48 students who passed out Class V from the

respondent No.2 Darya Ganj School, only 37 students were selected to

be admitted to the respondent No.1 Pusa Road School; similarly of the

32 students who passed out Class V from Ramjas Primary School,

Ballimaran, only 19 were selected for admission to the respondent

No.1 Pusa Road School and of the 43 students who passed out Class V

from Babu Ram Happy School, Sita Ram Bazar, only 33 were selected

for admission to the respondent No.1 Pusa Road School;

(VII) that the selection of students is not made arbitrarily but by

following a reasonable classification founded on an intelligible

differentia; the respondent No.1 Pusa Road School fixed a cut-off of

50% marks in Class V for admission in Class VI; that of the 48

students who had passed out Class V from the respondent No.2 Darya

Ganj School, only 40 had 50% or more marks and qualified for

admission and of which 3 did not opt for admission;

(VIII) that the petitioner had 49.1% marks in Class V and was thus not

eligible for admission; no student placed below the petitioner in the

merit list, has been admitted;

(IX) that though both the respondent No.1 Pusa Road School and the

respondent No.2 Darya Ganj School are running under the aegis of

respondent No.3 Ramjas Foundation but both Schools have separate

recognition, with the respondent No.1 Pusa Road School being

recognised by the respondent No.4 DoE and the respondent No.2

Darya Ganj School being recognised by the Municipal Corporation of

Delhi (MCD) and separate managements and separate accounts;

(X) that at the time of admission to the respondent No.2 Darya Ganj

School, no assurance of sure shot admission to the respondent No.1

Pusa Road School in Class VI is given;

(XI) that the petitioner has no right to get admission in the

respondent No.1 Pusa Road School; the respondent No.2 Darya Ganj

School is not the feeder school for the respondent No.1 Pusa Road

School;

(XII) denied that the petitioner has been victimized.

5. The respondent No.4 DoE in its counter affidavit has pleaded, (I) that

according to the guidelines regarding distance of residence at the entry level

admission issued by the respondent No.4 DoE, a recognised school may

admit students residing within 8 Km. distance from the school; however

unaided schools have been granted liberty to relax or modify or develop their

own admission criteria regarding distance of residence of the students; (II)

that the Right of Children to Free and Compulsory Education (RTE) Act,

2009 under Section 3 confers a right to free and compulsory education in a

neighbourhood school till completion of elementary education; the said Act

does not provide for admission of a general student in a school of his / her

choice; (III) that the respondent No.1 Pusa Road School, in which the

petitioner is seeking admission, is farther from the residence of the petitioner

at Chandani Chowk, Delhi-110006; (IV) that no declaration of the

respondent No.2 Darya Ganj School being a feeder school to the respondent

No.1 Pusa Road School exists.

6. The counsel for the petitioner drew attention to the Minutes of the 20th

Meeting held on 27th July, 2013 of the Ramjas Primary School Parent

Teacher Association, Daryaganj, resolving that all students of Standard V

will be admitted by the respondent No.1 Pusa Road School without making

any discrimination in Grades of the students and contended that the

respondent No.1 Pusa Road School is thus bound to grant admission to the

petitioner. Attention was next invited to the copy of the letter dated 18 th

March, 2015 of parents of some children including the father of the

petitioner to the respondent No.3 Ramjas Foundation requesting for discount

on books and it was contended that the petitioner has been victimised on

account thereof. It is further argued that the respondent No.1 Pusa Road

School, in the matter of admission to Class VI, is indulging in a screening of

students as per their grades and which is not permissible. It is argued that

even if it were to be held that the respondent No.2 Darya Ganj School is not

a feeder school for the respondent No.1 Pusa Road School and all students

passing out Class V from the respondent No.2 Darya Ganj School do not

have a right of admission in Class VI in respondent No.1 Pusa Road School,

admission should be by lottery and not by screening.

7. Per contra, the counsel for the respondent No.1 Pusa Road School

contended that the petitioner had been sympathetically considered for

admission and was, in fact given option of admission to other schools under

the respondent No.3 Ramjas Foundation but instead of opting therefor, is

insisting on admission to the respondent No.1 Pusa Road School and for

which he has no right. Attention was invited to Section 5 of the RTE Act,

sub-section (1) whereof provides that where in a school, there is no provision

for completion of elementary education (from I Class to VIII Class), a child

shall have a right to seek transfer to any other school, excluding the school

specified in sub-clauses (iii) and (iv) of clause (n) of Section 2, for

completing his or her elementary education. It was contended that the

respondent No.1 Pusa Road School is a school within the meaning of sub-

clause (iv) of clause (n) of Section 2, being an unaided school, not receiving

any kind of aid or grants to meet its expenses from the appropriate

Government of the Local Authority. It is argued that thus, under the RTE

Act also, the petitioner has no right to admission to the respondent No.1 Pusa

Road School. It is contended that the petitioner, under the RTE Act, has a

right to admission in Class VI only in a neighbourhood school. With respect

to the Minutes aforesaid of the meeting of Parent Teacher Association of the

respondent No.2 Darya Ganj School, it was contended that the same are not

even the minutes of the Managing Committee of the respondent No.2 Darya

Ganj School which also could not have bound the Managing Committee of

the respondent No.1 Pusa Road School, lest of the Managing Committee of

the respondent No.1 Pusa Road School and do not confer any right on the

petitioner. It was contended that the respondent No.1 Pusa Road School, in

the matter of selection for admission to Class VI, from amongst all the

students passing out from Class V from the respondent No.2 Darya Ganj

School, followed a rational criteria within the meaning of paras 36, 53, 55

and 61 of T.M.A. Pai Foundation Vs. State of Karnataka AIR 2003 SC

355. It was contended that the same does not amount to a screening

procedure within the meaning of the RTE Act.

8. The counsel for the respondent No.4 DoE drew attention to Rule 145

of Delhi School Education Rules, 1973 made in exercise of powers under

Section 16(3) of the Delhi School Education Act, 1973 and empowering the

head of every recognised unaided school to regulate admissions to any class

thereof, either on the basis of admission test or on the basis of result in a

particular class or school and on the basis thereof contended that the claim of

the petitioner is unsustainable.

9. The counsel for the petitioner in rejoinder, contended that the reliance

by the counsel for the respondent No.4 DoE on Rule 145 supra is

misconceived, the same having stood superseded by the RTE Act. With

respect to the reliance by the counsel for the respondent No.1 Pusa Road

School on T.M.A. Pai Foundation supra, it was contended that the same is

with respect to the higher education and is not applicable for admissions to

the school.

10. As would be obvious from a recording of the respective contentions

above, the only question requiring adjudication is whether the procedure

followed by the respondent No.1 Pusa Road School for admission in Class

VI from amongst those who have passed out Class V from the respondent

No.2 Darya Ganj School, is amounting to of screening procedure and

violative of RTE Act and if so, to what effect. Else, the petitioner has been

unable to establish that he has any right or claim for admission to the

respondent No.1 Pusa Road School. The two schools have been shown to

have, recognition from different authorities and different Managing

Committees and it is not even the case of the petitioner that he joined the

respondent No.2 Darya Ganj School having only till Class V with any

assurance of admission in Class VI in respondent No.1 Pusa Road School.

The reliance placed on the minutes of the meeting of the Parent Teacher

Association is totally misconceived in this regard. The resolution, even if

any of the Parent Teacher Association of the respondent No.2 Darya Ganj

School would not bind the respondent No.1 Pusa Road School. Moreover,

Section 5(1) supra of the RTE Act makes the position very clear.

11. Section 13 of the RTE Act in sub-section (1) thereof provides that "no

school or person shall, while admitting a child, collect any capitation fee and

subject the child or his or her parents or guardian to any screening

procedure". Sub-section (2) of Section 13 makes the violation, of subjecting

a child to screening procedure, punishable with fine extending to Rs.25,000/-

for the first contravention and Rs.50,000/- for each subsequent

contravention. „Screening procedure‟ is defined in Section 2(o) of the RTE

Act, as meaning "the method of selection for admission of a child, in

preference over another, other than a random method".

12. The question for consideration is, whether laying down of minimum

marks to be scored in the examination of Class V, below which a student

would not be admitted, amounts to a screening procedure and whether the

prohibition in RTE Act against the screening procedure, is applicable to the

subject facts.

13. I had during the hearing invited attention of the counsels to the

judgment of the Division Bench of this Court in Social Jurist, A Civil Rights

Group Vs. Govt. of NCT of Delhi 198 (2013) DLT 384 and to Forum for

Promotion of Quality Education for All Vs. Lt. Governor of Delhi 216

(2015) DLT 80 and enquired whether in the light thereof, the prohibition

against the screening procedure contained in the RTE Act, would be

applicable to the present controversy. The Division Bench in Social Jurist,

A Civil Rights Group supra held as under:

"30. Considering the provisions contained in Article 21-A of the Constitution and the scheme of the Right of Children to Free and Compulsory Education Act, 2009, as discussed earlier by us, there is no escape from the conclusion that as far as the private unaided schools referred in Section 2(n)(iv) of the said Act are concerned, the provisions of the Act, except the admission to the extent of 25% of the strength of the class, to the children belonging to the weaker sections and disadvantaged group, do not apply to the admissions made to the pre-elementary (pre-school and pre-primary) classes of such schools. Consequently, Section 13 of the Act which prohibits collection of capitation fee and adoption of any screening procedure also does not apply to the admissions made to the remaining 75% of the pre-elementary classes of unaided private schools."

14. Relying thereon, in Forum for Promotion of Quality Education for

All also, it was held that private unaided recognised schools have a

fundamental right under Article 19(1)(g) of the Constitution of India to

maximum autonomy in the day to day administration, including the rights to

admit student, except to the extent of admission to 25% of the seats, which is

governed by the RTE Act.

15. The only response which the counsel for the petitioner could give was

by referring to the judgment dated 19th October, 2013 of the Division Bench

of the High Court at Bombay in W.P. No.4986/2013 titled Jnana

Prabodhini Vs. Education Officer (Secondary) holding the procedure

adopted in that case, of holding an entrance test comprising of intelligence

test and interview for admission to Class V, to be a screening procedure

within the meaning of Section 2(o) of the RTE Act. The same however does

not address the issue with which we are concerned and is thus of no avail.

16. I may in this regard notice that another Division Bench of this Court in

Pramod Arora Vs. Hon'ble Lt. Governor of Delhi MANU/DE/0850/2014

has held that enforcement of rights under Section 26 of the Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995 against unaided schools is limited to 25% of the

seats under the RTE Act and to no more.

17. It follows from the aforesaid judgments that the prohibition against

subjecting a child to screening procedure in the matter of admission to a

school is applicable only qua the admission to 25% of the seats under the

RTE Act and does not apply to admission to the balance 75% of the seats.

The petitioner is not claiming admission under the RTE Act or to be a child

belonging to a disadvantaged group.

18. Mention may also be made of dicta of another Division Bench of this

Court in Social Jurist, a Civil Rights Group Vs. Govt. of NCT of Delhi

MANU/DE/3225/2012 against which no SLP is found to have been

preferred. It was held that the prohibition of in Section 13 of subjecting child

to screening procedure during admission is applicable only to admission at

the entry level i.e. Nursery or Class-I.

19. No fault can thus be bound in the procedure for admission adopted by

the respondent No.1 Pusa Road School.

20. There is thus no merit in the petition, dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

AUGUST 17, 2015 bs..

(Corrected and released on 8th September, 2015).